A war crime? Or a tragedy?

What the Marine Did

The shooting of an unarmed Iraqi was a tragedy. But was it a war crime?

A Marine shot an unarmed insurgent in a Fallujah mosque on Saturday. We know this because we saw it. The digital video footage of the shooting—recorded by NBC reporter Kevin Sites, who was embedded with the Marines—is running nearly continuously on cable news channels worldwide. We heard it, too. A Marine says: "He's f___ing faking he's dead. He's faking he's f___ing dead." The Marine comes into view with his rifle shouldered. There is a rifle shot. An Iraqi leaning against a wall slumps, leaving a blood stain behind. According to CNN, another Marine says, "Well, he's dead now."

This case would not exist without Mr. Sites. That a young soldier deferred to instinct over the rulebook in combat is unsurprising. What was surprising was the near-instant transmission of a battlefield video around the world, allowing us to witness the actions of one American rifleman. Judging by the swift condemnation from all over, the world is drawing its own conclusion about what happened in the bloody mosque. But to judge the Marine fairly takes more perspective and context. The video is clear enough, but truly understanding requires navigating an underlying landscape littered with legal ambiguity and moral craters.

When a unit seizes terrain, its enemy military occupants generally become prisoners, as long as they don't continue fighting. The Third Geneva Convention makes it a war crime to kill or injure a prisoner or to deny medical care to a prisoner for wounds suffered in combat, among other things. If prosecutors charge the Marine with murder, they will argue that the Marines took these Iraqi men as prisoners the moment they secured the building. Moving or not, the wounded Iraqi was a prisoner, and therefore it was a crime to shoot him, even in the crazy kill-or-be-killed environment of Fallujah.

The practice of taking battlefield prisoners dates back millennia, but the rules for treating them humanely are more recent. Ancient militaries treated prisoners well when they wanted to enslave them, not because there was any norm for doing so. It wasn't until the emergence of the chivalric code in the Middle Ages that rules of conduct came about. Still, even through the 20th century, examples abounded of prisoner mistreatment, especially at the precise moment of surrender—the moment when the battle is supposed to stop instantly and quarter is to be given. Popular histories of World War II are replete with examples of soldiers who killed their enemy after some overture of surrender was made or as retribution for atrocities by the other side. In Vietnam, Sen. John Kerry earned his Silver Starin part because he chased down and shot a fleeing Viet Cong fighter who had fired on his boat only minutes before.

International law treats such breaches mildly, with the understanding that it's difficult to expect soldiers to fight fiercely, then instantly behave amicably at the first signal of surrender. And so, the defense will argue that the Marines did not really secure the building and that these Iraqis were not prisoners yet: They were still combatants and still lawful targets; thus there's no crime. It's not clear how a military jury will judge this Marine when his day in court comes.

The twin essences of war are chaos and killing, so the very idea of placing inflexible constraints on the act of killing is at odds with the fundamental nature of warfare. Managing this cognitive dissonance while trying to stay alive takes tremendous skill. Professional militaries, like the U.S. Marine Corps, do this well because of their discipline and training. But the very existential nature of combat tilts the moral plane under these young riflemen's boots. In a place where you are fighting for your very survival, like the streets of Fallujah, any action that keeps you alive is a good one. And any misstep could get you or your buddies killed.

In this unit's case, one early lesson in Fallujah was to avoid Iraqis altogether, dead or alive. Iraqis wearing National Guard uniforms had ambushed them, killing one of their own. Another Marine had been killed when an explosive detonated under an insurgent corpse. Several insurgents had continued desperate fights notwithstanding gruesome wounds. Others tried to exploit the civil-military moral gap, acting as soldiers at 500 meters and as civilians when the Marines closed in. The Iraqis in the mosque may have been immobile, but to the Marines, they posed a threat.

Further, the Marines were fighting in an enemy city with little uncontested territory. There were no "friendly lines" behind which they could rest. The Marine in question had been wounded already. He was no doubt exhausted by five days of continuous fighting by the time he risked his life and burst into the mosque on Saturday. A well-rested man would have faced a dilemma inside, filled with shades of gray. A sleep-deprived man weary from days of combat saw only a binary choice: shoot or don't shoot, life or death.

Sleep requirements for pilots are rigorously enforced because performance is directly correlated to rest. After a sleepless 24 hours, a human being is no more coordinated or thoughtful than someone with a 0.1 percent blood-alcohol level, above the legal driving limit in all 50 states. Every subsequent sleepless day takes an exponential toll on the body, degrading performance roughly 25 percent a day until a state of chronic sleep deprivation takes hold, usually by the fifth day. Aviation units ground their tired pilots because they pose a danger to themselves and others. Yet there is no safeguard for the infantrymen and other ground troops who are doing 95 percent of the dying in Iraq. Whether you're a grunt fighting in Fallujah or a truck driver bringing supplies up from Kuwait, the military expects you to persevere, often with tragic consequences.

The literature on combat stress also suggests that prolonged periods of combat, upwards of 60 days, can lead to significantly reduced performance. Judgment and physical coordination are so retarded that some soldiers function only on the most basic level—survival.

So context is crucial when judging actions under fire. The very job of a rifleman is to close with and destroy his enemy—in essence, to kill the bad guy before he can kill you. But what separates the Marines from the rabble is their professional discipline—what a Harvard political scientist called the "management of violence" in describing the U.S. military. And so, this incident stands out for two reasons. First, it shows a breach of discipline, albeit under very stressful circumstances. But it also shows the extent to which the U.S. military will throw the book at one of its own. Already, the entire 1st Marine Division staff is involved with the case, and the top U.S. commander in Iraq said Tuesday that "[I]t's being investigated, and justice will be done."

On the same day as this story, the tragic news broke that CARE International worker Margaret Hassan had been executed by her captors in Iraq. Already, there have been cries of moral equivalence. One Iraqi told the Los Angeles Times: "It goes to show that [Marines] are not any better than the so-called terrorists." Al Jazeera fanned these flames of anti-American sentiment by broadcasting the shooting incident in full while censoring Hassan's execution snuff tape. (U.S. networks refused to air actual footage of both killings.) There is a simplistic appeal to such arguments because both events involve the killing of a human being and, more specifically, the apparent execution of a noncombatant in the context of war.

Yet it is the differences between these two killings that reveal the most important truths about the Marine shooting in Fallujah. Hassan was, in every sense of the word, a noncombatant. She worked for more than 20 years to help Iraqis obtain basic necessities: food, running water, medical care, electricity, and education. The Iraqi insurgents kidnapped her and murdered her in order to terrorize the Iraqi population and the aid workers trying to help them.

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By contrast, the Marines entered a building in Fallujah and found several men who, until moments before, had been enemy insurgents engaged in mortal combat. A hidden grenade would have changed everything, and the Marine would have been lauded. As it turned out, the Iraqi was entitled to mercy, but Hassan was truly innocent. There is no legitimate moral equivalence between a soldier asking for quarter and a noncombatant like Hassan.

There is another key difference that reveals a great moral divide between the Marines and insurgents they fought this week in Fallujah. The insurgents choose the killing of innocents as their modus operandi and glorify these killings with videos distributed via the Internet and Al Jazeera. They recognize no civilized norms of conduct, let alone the rules of warfare. The Marines, on the other hand, distinguish themselves by killing innocents so rarely and only by exception or mistake. Collateral damage is part of warfare, and civilians will die no matter how many control measures are in place. Yet the U.S. military devotes a staggering amount of resources to ensuring that civilian deaths do not happen, from sophisticated command systems that control precision bombs to staffs of lawyers at every level of command to vet targeting decisions. And when such breaches do occur, as they apparently did on Saturday, U.S. military commanders act swiftly to punish the offender, lest one incident of indiscipline blossom into many. (Indeed, one Army captain currently faces charges for killing a wounded Iraqi after a firefight and pursuit through the streets of Baghdad.)

War may be hell, but no honorable warrior likes to spread the hell unnecessarily. Killing Hassan, regardless of any attenuated argument the insurgent apologists may make, was both unlawful and amoral—and beneath what any warrior would do. Killing the insurgent in a split second because it was instinctual, on the other hand, was a tragedy, not an atrocity.

Phillip Carter is a former Army officer who writes on legal and military affairs. Owen West, a trader for Goldman, Sachs, served in Operation Iraqi Freedom with the Marines.

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